Fat v. County of Sacramento

• Decision Date: 04 April 2002
• Docket Number: No. C037610.,C037610.
• Citation: 119 Cal.Rptr.2d 402,97 Cal.App.4th 1270
• Parties: Kenneth F. FAT et al., Plaintiffs and Respondents, v. COUNTY OF SACRAMENTO, Defendant and Appellant, Sunset Skyranch Pilots Association et al., Real Parties in Interest and Respondents.
• Court: California Court of Appeals Court of Appeals

119 Cal.Rptr.2d 402

97 Cal.App.4th 1270

Kenneth F. FAT et al., Plaintiffs and Respondents, v. COUNTY OF SACRAMENTO, Defendant and Appellant, Sunset Skyranch Pilots Association et al., Real Parties in Interest and Respondents.

No. C037610.

Court of Appeal, Third District.

April 4, 2002.

Robert A. Ryan, Jr., County Counsel, and Diane E. McElhern, Deputy County Counsel, for Defendant and Appellant.

Gabrielli Law Office and John C. Gabrielli, Davis, for Plaintiffs and Respondents.

No appearance by Real Parties in Interest and Respondents Sunset Skyranch Pilots Association and Daniel Lang.

CALLAHAN, J.

Defendant County of Sacramento (County) approved a negative declaration and conditional use permit allowing real parties in interest Sunset Skyranch Pilots Association and Daniel Lang (collectively, the Pilots) to operate and expand Sunset Skyranch Airport (Airport) in Elk Grove. Plaintiffs Kenneth F. Fat and Wing K. Fat (collectively, the Fats) filed a petition for writ of mandate to set aside County's actions on grounds it failed to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)CEQA).¹ The court granted the petition, and County appeals.

The sole issue is whether County abused its discretion in using the physical conditions that existed in 1997 as the baseline for deciding whether the proposed project would result in significant environmental impacts.² We conclude County proceeded in the manner required by law, and therefore reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Airport has operated as a privately owned public facility since 1934. Lang acquired the property in 1971 when it "consisted only of a dirt strip, one hangar, and four to five airplanes ...."

In 1971, the board of supervisors approved a conditional use permit (CUP) for "a private use airstrip and ancillary uses" for a term of two years. A 1972 amendment to the county general plan showed a public use airport on the property. The CUP expired in 1973, and was not renewed. However, Airport continued to expand without County authorization.

In 1972, the California Department of Transportation Aeronautics Division issued state airport permit No. 34-19 allowing airport operations on the property. The permit has been active continuously since that date.

The Airport Land Use Commission of Sacramento, Sutter, Yolo, and Yuba Counties (ALUC) adopted the Sunset Skyranch Airport Comprehensive Land Use Plan (CLUP) in 1988. The ALUC declared the project exempt from CEQA review after it concluded the CLUP would not have a significant effect on the environment. No one challenged the claimed exemption.

The County denied Airport a business license in 1989. Thereafter, on February 20, 1990, the planning director denied Airport's request for a certificate of non-conforming use, and indicated that "the proper administrative procedure to bring the business into conformance would be to obtain a conditional use permit from the appropriate authority ...." County initiated two zoning enforcement actions to require Airport to obtain a CUP.

The ALUC amended the Airport CLUP in 1992 "by adopting Land Use Compatibility Guidelines that minimize[d] the public's exposure to noise and safety hazards." The amended CLUP described the facilities as they existed in 1992: "The airport's single paved runway is 2,780 feet long by 35 feet wide .... A parallel 1,900 by 25 foot gravel ultralight runway also exists. [¶] A total of 71 aircraft are currently based at Sunset Skyranch. The airport has 53 open tie-downs, 22 T-hangars, and 7 transient parking spaces. Two fixed-based operators, a flight school, and limited maintenance services exist. Ultralights operator [sic] on the airport. Fuel is available only to flight school members .... [¶] Annual operations are estimated to be 30,000. The theoretical runway capacity is estimated to be 130,000 annual operations. Because touch-and-go operations are restricted, the airport serves primarily as an aircraft parking facility." The ALUC adopted a negative declaration as part of the 1992 amendment process, and determined that "the project, without any mitigation measures, [would] not have a significant effect on the environment." It circulated the negative declaration for public comment, and no one challenged its adoption.

The Pilots applied for a CUP in October 1997 to authorize airport operations in the AG-80 and AG-80(F) zones. An attachment to the application stated they were "attempting to resolve a long running dispute with various agencies of Sacramento County over the legal status of Sunset Skyranch airport. [¶] Thr[ough] negotiations with the county, [the Pilots have] agreed to apply for a special use permit for the airport to continue to operate." The Pilots' stated goals were to (1) secure the long-term right to continue operations as an airport; (2) acquire building permits for the existing structures; and (3) obtain permission to convert existing aircraft parking areas to hangars.

The initial study briefly described the environmental setting. It indicated that the proposed site improvements involved construction of approximately 24 additional hangars "most likely ... limited to minor grading to accommodate concrete pads." Additional minor grading might be needed to create a level taxi area. It concluded that "[g]iven that the airport has been a continuous, long-term, preexisting use, and given the low population density, large lot agricultural and agricultural-residential nature of surrounding land uses, it is unlikely that any new, significant compatibility impacts would occur." The negative declaration stated that the project would not have a significant effect on the environment, and no EIR (environmental impact report) was required.

The Fats challenged the negative declaration during the comment period. They suggested County failed to consider the impact of noise and possible crashes on future residents of adjacent land, and failed to provide for mitigation. County responded that an EIR was unnecessary because "the currently proposed project [did] not result in additional noise or safety impacts beyond those already existing from on-going aircraft operations." It indicated that the existing noise and safety impacts would be mitigated through implementation of standards contained in the Airport CLUP.

The planning commission held public hearings, certified the negative declaration, and approved issuance of the CUP. County recorded the notice of determination. The Fats filed a timely appeal to the board of supervisors.

The board of supervisors conducted public hearings in August and October 1999. The Fats submitted written analyses of project impacts on air quality, noise, and wetlands. Ecologist Kenneth Shawn Smallwood examined the Airport's vernal pools and wetlands. His report addressed both past and future impacts of airport operations. Dr. Smallwood stated: "[T]he project area is rich in wildlife species, supports legally rare species, and provides habitat for multiple additional legally rare species which [he] did not observe during [his] brief visit to the airport. The project destroyed some wildlife habitat and put additional habitat at risk of further destruction due to land conversions and contamination by hazardous substances used for operation and maintenance of aircraft. Individuals of some legally rare species likely have been and will continue to be killed by aircraft during take-off and landings. These impacts have not only been significant, but perpetrated in violation of multiple environmental laws (in the absence of a Use Permit and an EIR). A Negative Declaration was inappropriate for this project. The Use Permit should not have been issued until a reasonable EIR had been prepared. In [his] opinion, an EIR needs to be prepared to assess the impacts of the project and to set forth an effective mitigation prescription for unavoidable impacts."

The board of supervisors denied the Fats' appeal, and certified the negative declaration. It did not determine whether there was pre-existing environmental damage. County issued the CUP in October 1999 for a period of five years.

The Fats filed a petition for writ of mandate in superior court. They asked the court to set aside approval of the CUP, and order the Pilots to stop operations at the Airport until the Pilots obtained the requisite permits and complied with all applicable laws, particularly CEQA. They emphasized two arguments in their trial brief. Relying on Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal. App.3d 823, 211 Cal.Rptr. 884 (Lewis), the Fats argued that "where there has been no prior CEQA review, ... the only baseline capable of assuring that no impacts escape evaluation (not to mention mitigation) is 1970, that being the year environmental evaluations began with CEQA's enactment." (Underscoring in original.) They also argued that Dr. Smallwood's biological resources report identified impacts that triggered mandatory findings of significance, and required preparation of an EIR.

At the hearing on the Fats' petition, the trial court expressed concern that the project had developed without the benefit of CEQA review. The court acknowledged that even if the baseline were set in the early '70's, it was unsure what the remedy could be. Ultimately, the court ruled that Lewis applied, and granted the writ. It ordered that the County not approve another CUP "until the County conducts a CEQA review that analyzes the environmental impacts resulting from the Airport's past from 1970 to the present." The court ruled it unnecessary to reach any other issues in the case.

DISCUSSION

I

We begin with a brief description of the legal principles which govern the analysis and review of agency decisions under CEQA. The purpose of CEQA is "`to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.'" (Laurel Heights Improvement Assn....